Mealey's Daubert

  • February 12, 2021

    Federal Judge Denies WYO Insurer’s Motion To Exclude Insureds’ Designated Expert

    BATON ROUGE, La. — A federal judge in Louisiana on Feb. 10 denied a Write-Your-Own (WYO) insurer’s motion to exclude the plaintiffs’ designated expert in a consolidated flood coverage dispute, finding that the insured’s motion is “substantively identical” to another insurer’s motion in limine in lawsuits that present common questions of fact and law and arise out of the same flood.

  • February 11, 2021

    Magistrate Judge Says Evidence Doesn’t Support Bomber Asbestos Case

    WILMINGTON, Del. — While a man identified stamping on the clamps he used on military B-58 bombers, plaintiffs never link that testimony to asbestos exposure, a federal magistrate judge in Delaware said Feb. 8 in recommending that summary judgment be granted.

  • February 10, 2021

    California Panel Affirms Dismissal Of Man’s UCL Claim In Sexual Supplement Case

    LOS ANGELES — A California appellate court panel on Jan. 25 affirmed a trial court’s granting of summary judgment in favor of a supplement maker that was sued under California’s unfair competition law (UCL) and accused of false advertising by a customer, writing that the trial court properly excluded an expert report as “too speculative” and that the customer presented no other evidence beyond his own anecdotal experience.

  • February 10, 2021

    Louisiana Federal Judge Allows Expert In Insurance Contract Breach Dispute

    BATON ROUGE, La. — An insurer’s arguments to exclude an expert witness in a breach of contract suit involving a flood insurance policy go to weight of the evidence, not its admissibility under Daubert v. Merrell Dow Pharm., Inc., a Louisiana federal judge ruled Jan. 28, denying the motion.

  • February 09, 2021

    Texas Appeals Court Says Daubert, State Admissibility Factors Don’t Apply In Case

    FORT WORTH, Texas — A police detective who testified on extracted data from a cell phone was offering lay testimony, and the trial court did not need to consider reliability factors under Daubert v. Merrell Dow Pharmaceuticals Inc. or Texas law, a state appeals court ruled Feb. 4, denying a man’s appeal of his robbery conviction.

  • February 08, 2021

    Justice: Testimony Can’t Spark Summary Judgment For Asbestos Wire Company

    NEW YORK — Conclusory statements from a corporate representative on company practices and two unsworn and unaffirmed expert affidavits on asbestos causation are not enough to secure summary judgment, a New York justice held Jan. 28.

  • February 08, 2021

    Judge: Transgender Inmates’ Expert May Testify In Suit Against State Officials

    EAST ST. LOUIS, Ill. — An Illinois federal judge on Feb. 4 denied a motion filed by officials from the state Department of Corrections to exclude expert testimony in a class action filed by transgender incarcerated women who allege that they suffer a risk of serious harm due to inadequate evaluation and treatment of gender dysphoria.

  • February 08, 2021

    Appeals Court Affirms Expert Witness Testimony Inadmissible In Nursing Home Suit

    TRENTON, N.J. — The assertion from an expert witness in a slip-and-fall case that nursing home staff should inspect a resident’s room once per hour is inadmissible net opinion, a New Jersey appeals court ruled Feb. 5, affirming a lower court’s grant of summary judgment for malpractice liability.

  • February 03, 2021

    Judge: Opinion Of Architecture Firm’s Expert On Water Intrusion Admissible

    EASTERN HATTIESBURG, Miss. — A federal judge in Mississippi on Dec. 14 denied a masonry subcontractor’s motion to exclude the opinion of an expert on structural engineering about the causes of water intrusion at an apartment complex, finding that the proffered testimony is not outside the scope of his expertise and that he is not offering engineering opinions.

  • February 02, 2021

    EpiPen MDL Judge Unseals Summary Judgment, Daubert Opinions After 44 Days

    KANSAS CITY, Kan. — Forty-four days after they were issued, a Kansas federal judge overseeing the EpiPen multidistrict litigation on Jan. 29 ordered his Dec. 17 summary judgment and expert witness opinions unsealed and partially redacted copies released by the court clerk (In Re:  EpiPen [Epinephrine Injection, USP] Marketing, Sales Practices and Antitrust Litigation, MDL Docket No. 2785, No. 17-md-2785, D. Kan.).

  • February 01, 2021

    Restaurant Seeks High Court Review Of Whether Roadwork Damage Caused Covered Loss

    WASHINGTON, D.C. — A Florida insured on Jan. 14 filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of whether construction dust and debris constitutes “direct physical loss” to its restaurant to trigger coverage under an “all-risk” insurance policy and whether a court erred in excluding three of its causation experts under Daubert and its progeny, noting that “certain issues presented overlap with the recent proliferation of COVID-19 insurance cases across the country.”

  • January 28, 2021

    Expert Opinions On Negligence Lacking; FELA Asbestos Suit Fails, Judge Says

    SEATTLE — An expert produced for both causation and liability purposes in a Federal Employers Liability Act (FELA) kidney cancer case completely ignored questions of negligence, such as what a railroad knew about asbestos and diesel exhaust exposure and whether it acted appropriately, a federal judge in Washington said Jan. 22 in granting summary judgment.

  • January 28, 2021

    Asbestos Defendant Says Illinois Genetic Testing Ruling Overstepped Frye

    CHICAGO — A court improperly focused on ultimate conclusions that might be drawn from genetic testing rather than if a blood draw is a generally accepted method of searching for genetic mutations, a company argues in a Jan. 26 motion seeking reconsideration of a ruling limiting testing of a woman.

  • January 28, 2021

    New York Justice: Dueling Experts Keep Asbestos Floor Companies In Lung Cancer Suit

    NEW YORK — Juries decide disagreements between experts on lung cancer causation science, and the dueling opinions are not grounds for granting summary judgment, a New York justice said in a pair of Jan. 22 opinions denying the motions of two asbestos-flooring companies.

  • January 27, 2021

    Texas Federal Judge Allows Expert To Testify In Guitar Trademark Row

    SHERMAN, Texas — An expert may testify that Gibson Brands guitar shapes are generic in a trademark dispute pending in a Texas federal court, a judge ruled Jan. 22, finding that the arguments made are better resolved through cross-examination.

  • January 26, 2021

    Federal Judge Limits Some Expert Witness Testimony In Wrongful Conviction Suit

    NEW ORLEANS — A Louisiana federal judge on Jan. 21 disposed of five motions to exclude expert witnesses in a single order in a wrongful conviction case against a state’s district attorney, denying two motions and granting in part three others.

  • January 25, 2021

    5th Circuit Vacates Class Certification For Residents Living Near Arkema Plant

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Jan. 22 vacated a ruling certifying a class for nearby residents of a Crosby, Texas, chemical production facility owned by Arkema Inc. that exploded as a result of flooding caused by Hurricane Harvey in 2017, finding that a federal judge in Texas did not fully address the predominance requirement of Federal Rule of Civil Procedure 23 and did not explain how the proposed injunctive relief for the medical monitoring and property remediation classes would remedy the members’ injuries.

  • January 25, 2021

    Expert May Testify On Sidewalk Conditions In Trip-And-Fall Suit, Judge Says

    LAFAYETTE, La. — An expert who will testify on the conditions of an expansion joint in a sidewalk outside a Hobby Lobby store met the standards set in Daubert v. Merrell Dow Pharmaceuticals Inc., a Louisiana federal judge ruled Jan. 21, denying the company’s motion to exclude in a trip-and-fall case.

  • January 20, 2021

    Rebuttal Witness Can Testify On Causation, Need For Treatment In Injury Case

    LAS VEGAS — Noting that a “district court does not determine whether the expert is right or wrong, but whether the testimony would be helpful,” a Texas federal magistrate judge on Jan. 19 largely allowed testimony from a rebuttal expert witness in a slip-and-fall case.

  • January 20, 2021

    Automaker Can’t Secure Exclusion Of Asbestos Experts, Cumulative Exposure Opinions

    BRIDGEPORT, Conn. — Three experts in an asbestos action adequately ground their opinions in science and the facts of the case, and their cumulative exposure opinions differ sufficiently from the rejected opinion that every exposure leads to disease, a federal judge in Connecticut said Jan. 18 in admitting the experts and denying a defendant company summary judgment.

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